House of Commons - Constitutional implications of the Government's draft Scotland clauses

Constitutional implications of the Government's draft Scotland clauses - Political and Constitutional Reform Contents

3 Operation of the devolved institutions and elections (clauses 3 to 9)

Operation of the Scottish Parliament and Government (clause 3)

Policy

71. The Smith Commission Agreement provided that the Scottish Parliament would be granted powers "to make decisions about all matters relating to the arrangements and operations of the Scottish Parliament and Scottish Government, including:

· powers over the overall number of MSPs or the number of constituency and list MSPs.

· powers over the disqualification of MSPs from membership and the circumstances in which a sitting MSP can be removed."[90]

72. Draft clause 3 "provides for the Scottish Parliament to have powers on matters relating to the operation of"[91] the devolved institutions, with a number of exceptions listed.

Implementation

73. Professor Douglas-Scott told us that the clause was "very confusingly drafted".[92] It was described to us by Mr Clancy as "a bit of a thicket"[93] and by Dr Hepburn as "quite impenetrable",[94] with, as Professor McHarg put it, "exceptions to exceptions to exceptions".[95] However, as Mr Clancy told us, "it is quite difficult to see how one could amend it in a particular way to make it more readable other than rewriting big chunks of the Bill and the existing Act."[96] Nobody told us in evidence of any serious unworkability in the clause as drafted.

Super-majority (clause 4)

Policy

74. Under clause 4, power over the following in respect of the Scottish Parliament (competence regarding which is devolved by other draft clauses considered here) can only be exercised if a "super-majority" (i.e. at least two-thirds of all MSPs) is obtained:

· the franchise;

· the system by which members are elected;

· the number of constituencies and number of regions; and

· the number of regional members to be returned for each region.

75. This provision has met with support from many of our witnesses[97] on the grounds that its purpose is to ensure a broad consensus of support for any proposed changes and to reduce the risk of "gerrymandering" to the advantage of any particular political party.[98]

76. It was suggested to us that requiring a two-thirds majority was an appropriate way of ensuring cross-party agreement on the issues to which it applies. Professor Michael Keating told us that:

a two-thirds majority would make it virtually impossible for any conceivable single party to change the electoral system in Scotland. One can imagine a single party getting two thirds, but it really is highly unlikely, given the proportional system. This guarantees that there must be cross-party agreement and that one single party is not able to abuse this power.[99]

77. Professor Douglas-Scott also pointed out the super-majority is particularly pertinent as the unicameral Scottish Parliament lacks the check provided by the existence of a second chamber.[100]

78. We were told by one group that in relation to devolved powers over elections, given the lack of a second chamber, "[e]very power transferred should require a super majority to be altered".[101] We have not widened the ambit of our inquiry to consider whether the Smith Commission Agreement should have gone further in its requirement for a super-majority (except in relation to electoral boundaries—see below). However, we note the views expressed to us,[102] and we did seek to clarify why the Scotland Office has drawn the line where it has. The Minister explained to us that the issues to which the requirement for a super-majority would apply are the "most fundamental", "the issues that are of the most significance to an election and changes to the current arrangements for the Scottish Parliament", but not issues "around the administration of elections".[103]

Implementation

79. Professor McHarg suggested to us that the super-majority requirement could be circumvented by means of a request to the UK Parliament to act (if the political composition of both Parliaments coincided sufficiently).[104] She described this as a "loophole"; it appears to be an inevitable consequence of the sovereignty of the UK Parliament. Any administration in Scotland seeking to circumvent the super-majority requirement by an appeal to Westminster would of course need to secure the consent of the Scottish Parliament to Westminster legislation, and would have to face the political consequences.

Administration and conduct of elections (clause 5)

Policy

80. Clause 5 aims to devolve to the Scottish Parliament full legislative and executive competence in relation to conduct of elections to the Scottish Parliament (but not in relation to UK Parliament or European Parliament elections).[105] Executive competence in this regard is already due to be devolved to the Scottish Government under the Scotland Act 2012 and the Scottish Parliament already has legislative competence in relation to the administration and conduct of Scottish local government elections.

81. There are some important exceptions:

· the Scottish Parliament will have no powers over the regulation of political parties (including donations); and

· general elections to the Scottish Parliament cannot be held on the same day as UK general elections (except "early" general elections), European Parliament general elections, or ordinary local government elections in Scotland (the polls must be two to six months apart).

82. Under clause 4, any changes to the voting system will require a two-thirds super-majority to be obtained. This protects against the possibility that such changes could be enacted for the benefit of one political party and without a broader basis of support.

Implementation

83. We were not told by witnesses of any shortcomings in the drafting of this clause.

The franchise (clause 6)

Policy

84. Clause 6 aims to devolve to the Scottish Parliament legislative competence in relation to the franchise for elections to the Scottish Parliament and Scottish local government (but not in relation to UK Parliament or European Parliament elections).[106]

85. Under clause 4, any changes to the franchise will require a two-thirds super-majority. Here again, this provides an important safeguard against changes that might otherwise be enacted for the benefit of a particular political party and without a broad consensus of support.

Implementation

86. The clause appears to implement the policy set out in the Smith Commission Agreement and the Command Paper, and we have received no evidence to suggest otherwise.

87. Devolution of the power specifically to reduce the voting age to 16 for elections to the Scottish Parliament and Scottish local government is being carried out through an Order in Council under section 30 of the 1998 Act. The Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015 was laid before Parliament on 21 January 2015 and approved by the House of Commons on 2 February 2015[107] and by the House of Lords on 26 February 2015.[108]

88. Professor Keating told us that there was consensus in Scotland in favour of the change to the voting age: "I suspect that this is an idea whose time has come".[109] By using a section 30 Order the Government says it will be possible for the change to take place in time for the Scottish Parliament elections in 2016 and the Scottish local authority elections in 2017.[110] Mr Mundell told us "There was a view expressed by the Scottish Government and a cross-party view in the Scottish Parliament that this issue was a priority and should be taken forward separately" from the proposed Bill.[111]

89. It might be argued that it is inappropriate to bring about such a change through secondary legislation, which Parliament can accept or reject but not amend;[112] Professor Douglas-Scott told us that giving the vote at such a young age is very unusual internationally.[113] It is, however, the devolution of this decision that is being expedited under the section 30 Order, not the decision itself: as Professor Keating explained to us, the decision is not being taken through secondary legislation and there will still be a parliamentary process at Holyrood.[114]

90. Although the decision will only affect the franchise for Scottish elections, it may set a precedent for the rest of the UK. The House of Lords Select Committee on the Constitution has recently observed that the Scottish Parliament is likely to use its new powers in order reduce the voting age for Scottish Parliament and Scottish local government elections and this "may lead to pressure for similar changes to the franchise in the other devolved territories", and in turn to the franchise for UK parliamentary elections.[115] The Government's recent proposals for further devolution to Wales envisage that the National Assembly for Wales should in future decide the franchise for Assembly elections, including the ability to lower the voting age to 16 if it wishes.[116] Though regarding the section 30 route as "preferable", Professor Douglas-Scott suggested to us that the opportunity for debate might be lost.[117] Certainly, once implemented for the Scottish Parliament and Scottish local government elections, any debate in the UK Parliament about the principle of 16- and 17-year-olds voting in, for example, general elections seems likely to be against a landscape in which, for a substantial section of the electorate, a voting age of 16 for certain elections is regarded as the norm. Yet, as Professor Keating told us, Westminster is "not obliged to do it just because the Scottish Parliament has decided to do it".[118] The Minister observed that when the debate was held in relation to the Order he did not think it took up the full allocated time.[119] As he said, there "needs to be wider debate and discussion in other parts of the United Kingdom", and "the experience in Scotland is something that people in the rest of the UK can reflect on."[120] We ourselves have called for a motion on allowing votes at 16 for Westminster elections to be debated in the 2015 Parliament, as a precursor to possible legislation.[121]

91. We note that the Order does not require the Scottish Parliament to enact any change to the voting age only by a super-majority, as will be the case once the draft clauses are enacted.[122] Mr Mundell's evidence to us was that a super-majority was not required "because it had been agreed among the five parties as part of the Smith process and all the five parties had agreed that that would form the shape of the franchise of the Scottish Parliament going forward".[123] In view of the current consensus on the point it is arguable little would be achieved by requiring such a majority.

Political campaign expenditure (clause 7)

Policy

92. Clause 7 aims to devolve to the Scottish Parliament legislative competence over campaign expenditure and controlled expenditure in relation to elections to the Scottish Parliament (except in relation to certain combinations of elections).[124] The Scottish Parliament already has legislative competence in relation to rules on campaign expenditure relating to Scottish local government elections. As noted above, the regulation of donations to political parties remains a reserved matter.

Implementation

93. We have received no observations directed to the policy or drafting of this clause, save that Professor McHarg described the reasons for not devolving powers over regulation of parties and donations to them as "fairly obvious".[125] Given that political parties generally operate across the UK, it may well be most appropriate that they should be regulated uniformly throughout the UK.

Electoral Commission (clause 8)

Policy

94. Clause 8 aims to devolve to the Scottish Parliament legislative competence over the functions of the Electoral Commission with respect to elections to the Scottish Parliament.

95. At present, the Scottish Government must reimburse the Commission for expenditure incurred in relation to Scottish local government elections.[126] There was no express provision in the Smith Commission Agreement about meeting the cost of the Electoral Commission's functions with respect to Scottish Parliament elections and the draft clauses make no provision. We have not had an opportunity to investigate this fully, but it seems to us an important issue.

Implementation

96. Draft clause 8 appears to implement the policy in the Command Paper, and no evidence before us has criticised the policy or its proposed implementation.

Boundary Commission for Scotland (clause 9)

Policy

97. Clause 9 seeks to devolve to the Scottish Parliament legislative competence in relation to functions of the Boundary Commission for Scotland relating to Scottish Parliament boundaries, and to amend the 1998 Act so that the Commission would report to the Scottish Ministers (who would be required to lay the reports before the Scottish Parliament). It also (though this is not expressly referred to in the Command Paper's explanation of the clause)[127] devolves legislative competence in relation to the number of constituencies, regions and regional members (but not the specification of constituencies or regions). The Smith Commission agreed that the Boundary Commission for Scotland would continue to operate as a UK public body and would report to the Scottish Parliament in relation to boundary reviews for the Scottish Parliament.[128] The Command Paper says that the Commission will continue to have functions in relation to UK Parliament constituency boundaries.

98. Under clause 4, modification of the law relating to the number of constituencies, regions, and regional members is subject to the requirement for a two-thirds super-majority, providing a safeguard against changes to those matters for the benefit of a particular political party without a broad consensus of support.

Implementation

99. Professor Douglas-Scott described having an initial reservation about the devolution to the Scottish Parliament of the decision whether to adopt recommendations of the Boundary Commission for Scotland, as it was not clear to her whether there was scope for the Scottish Government to amend a report of the Commission. However, she could see no real room for abuse in the area.[129]

100. Professor McHarg told us that the existence of a commission which would remain a UK body could be seen as providing some safeguard against potential gerrymandering.[130]

101. Professor McHarg told us that boundary changes were not covered by the requirement for a two-thirds majority.[131] Professor Loveland described this as "perhaps very unfortunate".[132] He told us: "It seems to me constituency boundaries are an extremely important part of the electoral system and my inclination again would be they are important enough that they should be subject to this higher degree of protection."[133] It might further be argued that the amendments[134] may give the unicameral Scottish Parliament, at the instance of the Scottish Government, the power to adopt an unchallengeable[135] Order in Council purporting to implement the Commission's recommendations about Scottish Parliament boundaries. In the UK Parliament such Orders must be approved by both Houses of Parliament.[136] Although we have not had the opportunity to explore more fully the implications of the proposed procedures for boundary changes, there appears to be a case for further consideration of additional safeguards such as the need for a super-majority in the Scottish Parliament for any such changes.

Our view

102. Draft clauses 3 to 9 largely deliver as promised in the Command Paper in implementing the Smith Commission Agreement, but we recommend further consideration be given to their detailed drafting.

103. The drafting of clause 3 is confusing. As we were told, it is "a bit of a thicket". We recommend that it be re-drafted if possible to clarify its effect.

104. The super-majority requirement contained in clause 4 is desirable and appears to implement the Smith Commission Agreement. It may be appropriate to extend the devolved powers to which it applies, but we do not make any recommendations about that.

105. The cost of meeting the Electoral Commission's functions in relation to Scottish Parliament elections as devolved to the Scottish Parliament by draft clause 8 was not dealt with by the Smith Commission Agreement. We invite the Government to consider this.

106. Given the unicameral nature of the Scottish Parliament, we invite the Government to consider whether some additional safeguard (such as a super-majority requirement) should be introduced to the process, amended by draft clause 9, for implementing recommendations of the Boundary Commission for Scotland about Scottish Parliament boundaries.

90 Report of the Smith Commission for the future devolution of powers to the Scottish Parliament, November 2014, para 26 (emphasis added) Back

91 Cm 8990, para 1.3.1 (emphasis added) Back

92 Q68 Back

93 Q20 Back

94 Q70 Back

95 Q20 Back

96 Loc. cit. Back

97 It was described to us by the Royal Society of Edinburgh and the British Academy as "welcome and desirable particularly for decisions relating to the electoral system for the Scottish Parliament as proposed by the Draft Clauses"-Royal Society of Edinburgh / British Academy (DSB 09) para 30-and by Professor Tom Mullen as "in principle, desirable"-Prof Tom Mullen (DSB 11). See also Qq28 [Prof I Loveland, Dr M Elliott], 39 [Mr W Sullivan, Mr D Torrance, Ms J Swann] 69, 70 [Dr E Hepburn] and 76. Back

98 Q39 [Mr D Torrance]. See also Q28 [Prof I Loveland] and Qq76-77. Back

99 Q76 Back

100 Q70 Back

101 United Against Separation (DSB 10) Back